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CISG CASE PRESENTATION

United States 8 November 2007 Federal Appellate Court [9th Circuit] (Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.)
[Cite as: http://cisgw3.law.pace.edu/cases/071108u1.html]

Primary source(s) of information for case presentation: Case text

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Case identification

DATE OF DECISION: 20071108 (8 November 2007)

JURISDICTION: United States

TRIBUNAL: U.S. Court of Appeals (9th Circuit) [federal appellate court]

JUDGE(S): Canby, Graber, Gould

CASE NUMBER/DOCKET NUMBER: 06-35398

CASE NAME: Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.

CASE HISTORY: 1st instance Federal District Court [State of Washington] 13 April 2006 [grant of summary judgment reversed due to failure of the district court to analyze the formation of the contract under the CISG; case remanded]

SELLER'S COUNTRY: United States (defendant)

BUYER'S COUNTRY: Mexico (plaintiff)

GOODS INVOLVED: Raspberry roots


Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 8

Classification of issues using UNCITRAL classification code numbers:

4B [Scope of Convention (exclusions): unconscionability];

8C [Interpretation in light of surrounding circumstances]

Descriptors: Scope of Convention ; Exculpatory clauses ; Unconscionability ; Intent

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1225&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): Text presented below; see also 2007 WL 4039341 (C.A. (Wash).)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

French: Claude Witz, Recueil Dalloz (23 October 2008) 2626

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Case text

United States Court of Appeals, Ninth Circuit

Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.

No. 06-35398

Argued and Submitted 8 November 2007.
Filed 16 November 2007

[...]

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-05-05538-FDB.

Before Canby, Graber and Gould, Circuit Judges.

MEMORANDUM [*]

Barbara Berry, S.A. de C.V. ("Barbara Berry"), a Mexican corporation, appeals the district court's grant of summary judgment in favor of Ken M. Spooner Farms, Inc. ("Spooner Farms"), a Washington state corporation, in Barbara Berry's action to recover damages for breach of contract. We have jurisdiction under 28 U.S.C. 1292 and we reverse the district court's judgment and remand for further proceedings.[1]

We review de novo a district court's decision to grant a motion for summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). In evaluating the district court's grant of summary judgment in favor of Spooner Farms, we view the evidence in the light most favorable to Barbara Berry. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997). We also review de novo the district court's interpretation and application of treaty language. Ramsey v. United States, 302 F.3d 1074, 1077 (9th Cir.2002).

The United Nations Convention on Contracts for the International Sale of Goods ("the CISG") governs the formation of contracts for the sale of goods between parties whose places of business are located in different member states. CISG arts. 1, 4, April 11, 1980, 1489 U.N.T.S. 3. Both the United States and Mexico are parties to the CISG. Treaties in Force 528-29 (2006). Therefore, the principles of the CISG apply to the contract between Barbara Berry and Spooner Farms. See CISG, arts. 1, 4. The district court erred in failing to first analyze the formation of the Barbara Berry-Spooner Farms contract under the CISG. We reverse due to this error because, applying the CISG, there exist genuine issues of material fact as to when a contract was formed between Barbara Berry and Spooner Farms, what terms were included in the contract, and whether those terms were later varied.[2]

In addition, the district court erred in failing to rule, prior to granting summary judgment in favor of Spooner Farms, on Barbara Berry's Federal Rule of Civil Procedure Rule 56(f) motion to continue discovery. See Garrett v. City of San Francisco, 818 F.2d 1515, 1519 (9th Cir.1987) (determining that a district court erred where it granted summary judgment for the opposing party prior to ruling on the discovery motion). Moreover, we are confident that this case is more likely to yield a correct resolution if the parties engage in a reasonable amount of discovery before the district court resolves the issue of contract formation.[3]

REVERSED and REMANDED.


FOOTNOTES

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here.

2. If it is determined that the limitation of liability provision within Spooner Farms' invoice or printed on the top of the boxes in which the goods were shipped is a part of the contract that was reached between the parties, then we agree with the district court's analysis that such provision would be enforceable. However, it first must be determined under the CISG, taking into account its articles and any pertinent precedent interpreting them, if that provision was a part of the contract.

3. If after discovery the legal issues on contract formation and the terms of the contract can be resolved with no genuine issue of material fact, then we do not rule out the possibility of a post-discovery motion for summary judgment.

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Pace Law School Institute of International Commercial Law - Last updated November 10, 2008
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